The opinion
DISSENTING STATEMENT BY
FORD ELLIOTT, J.:
¶ 1 I must respectfully dissent because I find persuasive the district court’s analysis in Triplett v. United Behavioral Health Systems, Inc., 1999 WL 238944 (E.D.Pa.1999) (memorandum), despite the majority’s claim that it is distinguishable.
¶ 2 As the Triplett court opined, the language of 29 U.S.C. § 1002 (32) of ERISA herein at issue is “ ‘clearly disjunctive[.]’ ” Triplett, 1999 WL 238944 , at *3, quoting Hightower v. Texas Hospital Association, 65 F.3d 443 , 450 (5th Cir.1995) (other citations omitted). Thus, if a plan is created as a governmental plan, it remains a governmental plan so long as the governmental unit that created it does not abandon it. According to Triplett , a governmental plan cannot lose its exempt status *994 merely by adding private employers and treating itself as ERISA-qualified:
Were this the case ... a benefit plan would be able to opt into (or perhaps even out of) ERISA. 29 U.S.C. § 1002 (32) makes no provision for such options; it merely describes which plans are governmental plans and (by implication) which are not. There is no reason to think that a plan’s determination of its status under ERISA is any more meaningful than any litigant’s determination of its status under any statute. I thus find that PEBTF’s interpretation of itself as a non-governmental plan is not relevant to determining whether PEBTF is in fact a governmental plan. See Clark v. Group Plan for Employees of North Tonawanda Pub. Schools, 845 F.Supp. 117, 120 (W.D.N.Y.1994) (disregarding similar ‘statement of ERISA rights’ in group plan booklet).
Triplett, 1999 WL 238944 , at *3.
¶ 3 Based upon my reading of the statute and the cases, including Triplett , interpreting it, I must therefore respectfully dissent.